Order XLI Rule 5 CPC Only Permits Stay Of Execution Of Decree, Not Stay Of Operation Of Judgment: Kerala High Court

The Kerala High Court recently held that Order XLI Rule 5 of the Code of Civil Procedure only provides for stay of the proceedings under a decree or stay of execution of the decree and does not empower the appellate court to stay the operation of the judgment,

Justice V.G Arun allowed the original petition (Civil) with a direction to the appellate court to consider the application for stay afresh and to pass orders after affording an opportunity of hearing to the parties.

"Going by the plain meaning of Order XLI Rule 5, it provides for only stay of the proceedings under a decree or stay of execution of the decree. The provision does not empower the appellate court to stay the operation of the judgment."

The Court also clarified the distinction between stay of execution of decree and stay of operation of judgment.

"Stay of operation of the judgment is not the same as staying the operation of the proceedings under a decree or staying the execution of a decree. An order staying the operation of the judgment will amount to staying the findings in the judgment, which cannot be done at the stage of admission."

The petitioner had filed a suit at a Munsiff court for a perpetual injunction and the court had issued a decree in favour of the petitioner.

However, the respondents moved an interlocutory application under the provisions of Order 41 Rule 5 of CPC seeking to stay the operation of the decree of the lower court which was allowed by the Additional District Court.

therefore, the petitioner moved the High Court challenging the order of the District Court on the basis of the limited provision of Order XLI Rule 5 of CPC.

The primary contentions raised revolved around the scope of Order XLI Rule 5 of CPC.

It was argued that the legislature intent behind the caption 'stay of proceedings' and 'stay of execution' was that the appellate court can do nothing other than staying the proceedings under the decree or staying execution of the decree.

Moreover, it was added that a stay of operation of a judgment will have the effect of relegating the parties to the pre-suit stage.

The Single Judge also noted that even though the appellate court had stated its reasons for issuing the order under challenge, the appellate court had no power to stay the operation of the judgement.

"Even on being convinced of the reasons for granting stay, the appellate court could have stayed only the proceedings under the decree or execution of the decree and not, the operation of the judgment." 

The Court had thereby issued an interim order in favour of the petitioner directing the appellate court to take up the matter and pass orders expeditiously.

However, the appellate court considered the same and dismissed the review application, relying on Order 41 Rule 33 of CPC.

The Bench observed that the appellate court was not expected to exercise the power under Order 41 Rule 33 CPC while admitting an appeal since such power can only be exercised while considering the appeal on merits.  

Finding force in the arguments of the petitioner, the Judge set aside the orders of the appellate court.

Advocate H. Vishnudas appeared for the petitioner in the matter.  

Case Title: Raveendran v. Lalitha & Ors.

Click Here To Read/Download The Order